Citation Nr: 0119799
Decision Date: 07/31/01 Archive Date: 08/07/01
DOCKET NO. 98-06 557A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to a rating in excess of 20 percent for residuals
of a left hand gunshot wound with ring finger shortening.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P.M. DiLorenzo, Counsel
INTRODUCTION
The veteran served on active duty from February 1966 to
August 1969.
This matter arises before the Board of Veterans' Appeals
(Board) on appeal from a November 1997 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois, that granted service connection for
residuals of a gunshot wound to the left hand with a 10
percent disability rating, effective from May 19, 1997. The
veteran appealed the RO's decision to the Board.
In April 1999, the Board remanded the case to clarify whether
or not the veteran wanted a personal hearing before a member
of the Board, and if so, to schedule him for an appropriate
hearing. In December 1999, a Travel Board hearing was held
before the undersigned Board member who was designated by the
Chairman to conduct that hearing, pursuant to 38 U.S.C.A.
§ 7107(c) (West Supp. 2000).
The case was remanded by the Board in May 2000 for
examination of the veteran. The requested development was
accomplished, and in October 2000 the RO assigned a 20
percent disability rating for the veteran's residuals of a
left hand gunshot wound with ring finger shortening,
effective from May 19, 1997.
FINDINGS OF FACT
1. Throughout the period of time since May 19, 1997,
residuals of a left hand gunshot wound have been manifested
by subjective complaints of pain, weakness and stiffness; and
objective evidence of weakened grip of the hand, decreased
range of motion with some weakness and stiffness of the ring
and little fingers, and one inch ring finger shortening.
2. Residuals of a left hand gunshot wound have not required
frequent hospitalization, caused marked interference with
employment, or involved any factors rendering impracticable
the application of the regular schedular standards.
CONCLUSIONS OF LAW
1. A rating in excess of 20 percent for residuals of a left
hand gunshot wound with ring finger shortening is not
warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7,
4.71a, 4.73, Diagnostic Codes 5155, 5219, 5309 (2000).
2. Referral to the Director of the Compensation and Pension
Service for consideration of an extra-schedular rating for
residuals of a left hand gunshot wound with ring finger
shortening is not warranted. 38 C.F.R. § 3.321(b)(1) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual background
The veteran's service medical records show that on August 25,
1967, he sustained an accidental through and through 45
caliber pistol gunshot wound to the left hand with fracture
and destruction of the metacarpal phalangeal (MCP) joint of
the ring finger. He was treated with debridement, tetanus
toxoid, and antibiotics, and evacuated for further treatment.
On admission to a hospital on September 1, 1967, there was an
open and draining wound. There was no evidence of nerve,
fascia, or tendon damage. X-rays of the left hand revealed a
comminuted fracture of the head of the fourth metacarpal with
associated fracture in the base of the proximal fourth
phalanx. No metallic or foreign bodies were noted. The
veteran's hospital course was one of continued wound care and
gradual healing. The wound was "completely healed" by
early October, and there was "noted some drainage." There
was thickening of the palm and limitation of motion of the
ring finger at the MCP joint. The possibility of surgery to
improve range of motion of the finger was discussed; however,
it was felt that another four to six weeks should elapse
prior to any surgery. The veteran was sent on convalescent
leave for 30 days, i.e., until November 15, 1967. Surgery
was scheduled for November 17, 1967. The veteran failed to
report for surgery and was discharged to full duty on
November 22, 1967, fit for same. The defect was considered
not disqualifying.
On May 29, 1968, the veteran was reevaluated for arthroplasty
of the MCP joint of the left ring finger. X-rays at that
time showed good position at the osteotomy site with good
pseudoarthrosis present.
Upon VA examination in August 1997, the examiner reviewed the
veteran's claims file. The veteran's complaints included
difficulty writing with the left hand due to pain and
weakness; stiffness and pain, especially with gripping and
activity; localized tenderness of scar tissue; and
hypersensitivity to touch of the finger joints. The examiner
noted that the veteran's left hand grip was weaker as
compared to the right. Strength on the left was 3/5 and on
the right it was 5/5. Flexion and extension of the fourth
finger joint (ring finger) was weak and with some stiffness,
compared to the active flexion and extension of the fifth and
third fingers. There was shortening of the fourth finger
from the knuckle to the tip of the hand. The left ring
finger measured 3 1/2 inches, compared to the right which was
4 1/2 inches. There was muscle tissue involvement at the left
hand gunshot wound exit scar, with Muscle Group IX
involvement. Extension of the fourth finger was to 0 degrees
with pain and effort and to -10 degrees without pain.
Flexion of the mid-interphalangeal (IP) joint was to 75
degrees with pain and effort and to 65 degrees without pain.
Abduction position of the fifth inter finger from the fourth
finger was done well and normal. Extension of the proximal
IP joint was to 0 degrees without pain, and flexion was to 30
degrees with pain. On the base of the fourth finger, dorsal
left hand, was a severely disfiguring scar of a shell
fragment wound exit. The entrance wound showed mild
disfigurement on the palmar area of the fourth metacarpal
joint. The scar was healed with keloidal formation and Group
IX muscle involvement. There was hypersensation and
hyperesthesia of the surface of the scar. The diagnosis was
scar residuals of a gunshot wound of the left hand involving
the fourth distal metacarpal with fracture and also involving
group muscles in that area with one inch shortening of the
ring finger as compared to the right and weakened strength.
The examiner also indicated that current x-rays revealed
residuals, i.e., "see report." The x-ray report of the
veteran's left hand showed a short fourth digit, deformity of
the proximal interphalangeal (PIP) joint, absence of the
fourth metacarpal head, most likely consistent with the
status post fracture and open reduction and internal fixation
(ORIF); degenerative joint disease of the fourth MCP joint
and fourth and fifth distal IP joints; cystic-like changes of
the ulna styloid, first proximal phalanx, and second and
third metacarpal heads; and a minimal flexion deformity of
the distal interphalangeal (DIP) joint.
In November 1997, the RO granted service connection for
residuals of a gunshot wound of the left hand, effective from
May 19, 1997. A 10 percent rating was assigned under Code
5309. The veteran appealed the RO's decision to the Board.
In an April 1998 addendum to the August 1997 examination
report, the examiner stated that the scar on the base of the
fourth finger, dorsal left hand, was tender and painful with
sensory changes and hyperesthesia and hypersensation.
In May 1998, the RO granted service connection for a gunshot
would scar of the left hand, effective from May 19, 1997. A
10 percent d rating was assigned under Code 7804. The
veteran did not appeal.
The veteran has offered lay statements on appeal, including
at a Travel Board hearing at the RO in December 1999.
Concerning the severity of the left hand disability, he
stated that he experienced aches, pains and a weakened grip.
He had difficulty writing and had to take pain medication.
He was able to lift objects, but not as well as with the
right hand. He could hold and lift a coffee mug. He had
difficulty squeezing and with manipulation.
Upon examination by Michael J. Cohen, M.D. in December 1999,
the veteran indicated that he worked in maintenance at a
warehouse. Since his left hand gunshot wound injury in 1967,
he had some decreased strength and motion in the hand and
some intermittent pain, especially with increased activities.
At present, his main complaint was of pain with extended use
of the hand, mainly in the area of the MP joint of the left
ring finger. He also had increasing symptomatology with
weather changes, and felt that his pain was worsening over
time. He had intermittent numbness in his fingers in the
morning a couple of time a week, but Dr. Cohen stated that
this was unrelated to the gunshot wound injury.
On physical examination, the veteran had pretty good range of
motion of his ring finger with about 10 to 15 degrees of
extensor lag at the MP joint, but he was able to get it just
about the full flexion into his fist. There was some
decreased strength in that finger, and good capillary refill
at the tip of the finger. Two-point was 5 millimeters both
radially and ulnarly. There was a healed wound both dorsally
and palmarly. X-rays of the veteran's left hand showed
obliteration of the metacarpal head of the ring finger.
There was some space still present there, i.e., not bone-on-
bone, but it was obviously arthritic. Dr. Cohen stated that
the veteran was doing reasonably well given the severity of
his injury in 1967. He had pain and arthritic changes at the
left ring finger MP joint, related to his injury in Vietnam.
The veteran was re-examined by VA in August 2000. The
examiner reviewed the claims file. The veteran stated that
he had a little more pain than he did in 1997, but otherwise
his complaints were similar. Writing and gripping caused
pain and stiffness in the left hand. On physical
examination, there was weakness of the left hand grip
compared to the right. Strength on the left was 3/5 and on
the right it was 5/5. There was weakness of flexion and
extension of the left ring and little fingers, i.e., fourth
and fifth digits, and this was the cause of the weakness of
the left hand grip. There was shortening of the left fourth
finger and some tenderness of the scar on the dorsum of the
left fourth MCP joint. The length of the fourth finger from
the MCP joint was 3 1/2 inches, compared to the right which was
4 1/2 inches. The impaired fingers of the left hand, from a
functional standpoint, were the fourth and fifth fingers.
Range of motion of the left wrist was normal with no
limitation. The veteran had 30 (0-90) degrees of flexion of
the MCP joint of the left ring finger, limited by pain at 35
degrees, and 10 (0-30) degrees of extension, limited by
weakness at 8 degrees. He had 65 (0-90) degrees of flexion
of the proximal IP joint of the ring finger, limited by pain
at 60 degrees, and 25 (0-30) degrees of extension, limited by
lack of endurance at 20 degrees. He had 55 (0-90) degrees of
flexion of the distal IP joint of the ring finger, limited by
pain at 55 degrees, and 25 (0-30) degrees of extension,
limited by fatigability at 20 degrees. The veteran had 75
(0-90) degrees of flexion of the MCP joint of the little
finger, limited by pain at 70 degrees, and 20 (0-30) degrees
of extension, limited by lack of endurance at 20 degrees. He
had 85 (0-90) degrees of flexion of the proximal IP joint of
the little finger, limited by weakness at 85 degrees, and 25
(0-30) degrees of extension, limited by pain at 20 degrees.
Finally, he had 75 (0-90) degrees of flexion of the distal IP
joint of the little finger, limited by fatigability at 75
degrees, and 25 (0-30) degrees of extension, limited by lack
of endurance at 25 degrees. There was no incoordination on
movement or any tremor.
The veteran was able to write with his left hand, but with
difficulty. His signature was legible, and he demonstrated
it to the examiner. He stated that there was fatigue and
progressive weakness of the left hand with continued use.
The examiner indicated that the fingertip of the left fourth
digit could be flexed to 4 inches of the transverse flexor
fold of the palm. The fingertip of the left fifth digit
could be flexed to 3 inches of the palmar fold. This was a
significant limitation of motion, but there was no ankylosis.
There was very little ability to move the fourth and fifth
fingers horizontally, i.e., medial or lateral, measuring less
than 1 inch. The veteran was able to touch the tip of his
thumb to the tips of his fourth and fifth fingers, but with
difficulty. During flare-ups, or when the left hand was used
repeatedly, range of motion of the fourth and fifth fingers
decreased by 10 percent. X-rays showed a short fourth digit,
deformity of the proximal IP joint, absence of the fourth
metacarpal head, and degenerative joint disease of the left
MCP joint, fourth distal IP joint, and fifth distal IP joint.
There were cystic-like changes of the first ulnar styloid,
first proximal phalanx, and second and third metacarpal head.
There was also a minimal flexion deformity of the DIP joint.
The diagnosis was left hand gunshot wound with weakness,
stiffness, and limited motion of the left fourth and fifth
fingers at the MCP joints. The examiner indicated that there
was no pain on motion during the examination; however, there
was pain in the area of the scar overlying the fracture and
the scar was somewhat tender and demonstrated hyperesthesia.
In October 2000, the RO assigned a 20 percent disability
rating for residuals of a gunshot wound of the left hand with
ring finger shortening under Diagnostic Code 5309-5219,
effective from May 19, 1997.
II. Legal analysis
VA has a duty to assist in the development of facts relating
to this claim. See Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). The
veteran was notified of the evidence needed to warrant the
assignment of a higher disability rating for his left hand
disorder by means of the April 1998 statement of the case,
May 1998 and October 2000 supplemental statements of the
case, and May 2000 Board remand. VA has met its duty to
inform the veteran that any additional information or
evidence is needed. VCAA, Pub. L. No. 106-475, § 3(a), 114
Stat. 2096, 2096-97 (2000) (to be codified as amended at
38 U.S.C. §§ 5102 and 5103).
The RO requested and obtained the veteran's service medical
records and has made efforts to obtain his complete private
and VA treatment records. VCAA, Pub. L. No. 106-475, § 3(a),
114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C.
§ 5103A). The RO wrote to the veteran in June 2000 and
requested that he identify all VA and non-VA health care
providers that had treated him for his left hand disorder
since 1996. He responded that he had not seen any health
care providers for his left hand disorder since 1996. The
veteran was also afforded appropriate VA examinations in 1997
and 2000. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096,
2097-98 (2000) (to be codified at 38 U.S.C. § 5103A(d)).
There is more than sufficient evidence of record to decide
this claim properly.
In the circumstances of this case, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991). VA has satisfied its duties to inform and assist
the veteran in this case. Further development and
expenditure of VA resources is not warranted.
Since this appeal is from the initial rating assigned
following a grant of service connection, the entire body of
evidence is for consideration. Consistent with the facts
found, the rating may be higher or lower for segments of the
time under review on appeal, i.e., the rating may be
"staged." Fenderson v. West, 12 Vet. App. 119 (1999).
Before the Board considers a staged rating for the veteran's
disability, it must be determined that there is no prejudice
to him to do so without remand to the RO for that purpose.
Bernard v. Brown, 4 Vet. App. 384, 389 (1993). Throughout
the course of this appeal, the RO evaluated all the evidence
of record in determining the proper evaluation for the
veteran's left hand disability. Further, as the regulations
and rating criteria to be applied are the same, there is no
prejudice to the veteran in considering the issue as one of
entitlement to a higher rating on appeal from the initial
grant of service connection.
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder.
38 U.S.C.A. § 1155. Separate diagnostic codes identify the
various disabilities. Id. Evaluation of a service-connected
disorder requires a review of the veteran's entire medical
history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. For
a claim where the veteran has disagreed with the original
rating assigned for a service-connected disability, it is
necessary to determine whether he has at any time since his
original claim met the requirements for a higher disability
rating. See Fenderson. It is also necessary to evaluate the
disability from the point of view of the veteran working or
seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable
doubt regarding the extent of the disability in the veteran's
favor. 38 C.F.R. § 4.3. If there is a question as to which
evaluation to apply to the veteran's disability, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria for that rating. Otherwise,
the lower rating will be assigned. 38 C.F.R. § 4.7.
The veteran's residuals of a left hand gunshot wound are
rated under the criteria for evaluating a muscle injury to
Muscle Group IX, which includes the intrinsic muscles of the
hand. 38 C.F.R. § 4.73, Diagnostic Code 5309. During the
pendency of this appeal, the rating criteria for muscle
injuries, 38 C.F.R. § 4.73 et seq., were amended effective
July 3, 1997. See 62 Fed. Reg. 30,235 (June 3, 1997). These
revisions resulted in slight modifications and rearrangement
of the criteria rather than significant substantive changes
in the criteria that might affect the outcome in this case.
The RO has adjudicated the veteran's claim under the new
regulations. Accordingly, the veteran will not be prejudiced
by the Board's review of his claim on appeal. VAOPGCPREC
11-97 at 3-4; Bernard v. Brown, 4 Vet. App. 384, 393-94
(1993); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
The veteran's left hand is his dominant hand, so impairment
of this hand is rated as impairment of the major extremity.
38 C.F.R. § 4.69. Under Diagnostic Code 5309, injuries to
Muscle Group IX are rated on the basis of limitation of
motion, with a minimum rating of 10 percent. 38 C.F.R.
§ 4.73, Diagnostic Code 5309. The hand is so compact a
structure that isolated muscle injuries are rare, being
nearly always complicated with injuries of bones, joints,
tendons, etc. and should be rated on limitation of motion,
with a minimum of 10 percent. See Note following Diagnostic
Code 5309.
Thus, in order to evaluate the veteran's left hand disability
the Board must look at the appropriate limitation of motion
codes. Combinations of finger amputations at various levels,
or of finger amputations with ankylosis or limitation of
motion of the fingers will be rated on the basis of the grade
of disability, i.e., amputation, unfavorable ankylosis, or
favorable ankylosis, most representative of the levels or
combinations. With an even number of fingers involved, and
adjacent grades of disability, select the higher of the two
grades. 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5223.
The ratings for codes 5216 through 5219 apply to unfavorable
ankylosis or limited motion preventing flexion of tips to
within 2 inches (5.1 cms.) of median transverse fold of the
palm. The ratings for codes 5220 through 5223 apply to
favorable ankylosis or limited motion permitting flexion of
the tips to within 2 inches (5.1 cms.) of the transverse fold
of the palm. Limitation of motion of less than 1 inch (2.5
cms.) in either direction is not considered disabling.
The RO assigned the veteran a 20 percent disability rating on
the basis of unfavorable ankylosis of two fingers of the
major hand, as he was unable to flex his ring and little
fingers to within 2 inches of the median transverse fold of
the palm of his hand. 38 C.F.R. § 4.71a, Diagnostic Code
5219. Upon VA examination in August 2000, the fingertip of
the left fourth digit could be flexed to only 4 inches of the
transverse flexor fold of the palm and the fingertip of the
left fifth digit could be flexed to only 3 inches of the
palmar fold. Range of motion of the these fingers was
limited by pain, lack of endurance, fatigability, and
weakness. The examiner stated that there would be additional
loss of motion during flare-ups or when the hand was used
repeatedly. The veteran's complaints of pain on motion and
functional loss are compensated by the assignment of the 20
percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2000); see
also DeLuca v. Brown, 8 Vet. App. 202 (1995).
A higher rating would require extremely unfavorable ankylosis
of the fingers (all joints in extension or in extreme
flexion, or with rotation and angulation of bones) or more or
different finger anatomical involvement (here, only
disability of the ring and little fingers is service
connected). 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to
5223, note (a) following Code 5219, and Code 5151. While
amputation of the ring and little fingers of the major hand
could warrant a 30 percent rating, extremely unfavorable
ankylosis of those two fingers (as described above), which
would permit rating as amputation, is not shown. The veteran
still has some, albeit minimal, motion of the ring and little
fingers remaining, even when the factor of pain is
considered. (Note the report of VA examination in August
2000, summarized above.)
As noted above, the 20 percent disability rating assigned for
the veteran's left hand disorder encompasses a level of
functional loss as a result of symptoms due to unfavorable
ankylosis of the ring and little fingers. Even with
consideration of the factor of pain, there is no medical
evidence showing that the level of impairment present
reaches, or approximates an equivalent of extremely
unfavorable ankylosis, i.e., all joints involved are not in
extension or in extreme flexion, nor is there rotation or
angulation of bones.
The veteran has already been assigned a separate 10 percent
rating for a scar as a residual of a gunshot wound of the
left hand. See Esteban v. Brown, 6 Vet. App. 259, 261-262
(1994); 38 C.F.R. § 4.14. He has not appealed that rating.
Consideration of a separate rating under Diagnostic Code 8516
is not warranted. Although the veteran complained of
intermittent numbness in his fingers in December 1999, Dr.
Cohen stated that this was unrelated to the gunshot wound
injury.
Finally, the veteran's representative requested that the
veteran be awarded a separate compensable rating for
limitation of motion of the wrist under Diagnostic Code 5215.
See Appellant's Brief, dated May 8, 2001. However, there is
no medical evidence of record suggesting that impairment of
the wrist is a residual of the service-connected gunshot
wound. Regardless, the veteran had normal range of motion of
the wrist on VA examination in August 2000 with unlimited
dorsiflexion to 70 degrees and palmar flexion to 80 degrees.
Under Diagnostic Code 5215, the only available schedular
evaluation for limitation of motion of the wrist is 10
percent for either the minor or major extremity, and that
requires either dorsiflexion of less than 15 degrees or
palmar flexion limited in line with the forearm. The
regulations define normal range of motion for the wrist as
dorsiflexion (extension) to 70 degrees, palmar flexion to 80
degrees, ulnar deviation to 45 degrees, and radial deviation
to 20 degrees. 38 C.F.R. § 4.71, Plate I. A compensable
rating would not be warranted because dorsiflexion was not
less than 15 degrees, nor was palmar flexion limited in line
with the forearm. 38 C.F.R. § 4.71a, Diagnostic Code 5215.
For the reasons discussed above, the Board finds the evidence
to be against entitlement to a rating in excess of 20 percent
for residuals of a left hand gunshot wound with ring finger
shortening. 38 C.F.R. § 4.7. The veteran's contentions on
appeal have been accorded due and sympathetic consideration.
However, the evidence in this case is not so evenly balanced
so as to allow application of the benefit of the doubt rule
as required by law and VA regulations. 38 C.F.R. §§ 3.102,
4.3.
In exceptional cases where schedular evaluations are found to
be inadequate, the RO may refer a claim to the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, for consideration of "an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability or disabilities." 38 C.F.R. § 3.321(b)(1).
"The governing norm in these exceptional cases is: A
finding that the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards." 38 C.F.R. § 3.321(b)(1).
The RO adjudicated the issue of entitlement to an extra-
schedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) in
the April 1998 SOC. Although the Board has no authority to
grant an extraschedular rating in the first instance, it may
consider whether the RO's determination with respect to that
issue was proper. See VAOPGCPREC 6-96; Floyd v. Brown,
9 Vet. App. 88, 95 (1996) (Board may consider whether
referral to "appropriate first-line officials" for
extra-schedular rating is required); see also Bagwell v.
Brown, 9 Vet. App. 337, 339 (1996) (BVA may affirm an RO
conclusion that a claim does not meet the criteria for
submission pursuant to 38 C.F.R. § 3.321(b)(1)).
It does not appear that the veteran has an "exceptional or
unusual" disability; he merely disagrees with the rating
schedule's assignment of a 20 percent evaluation for his
level of disability. He has not required any recent periods
of hospitalization for his left hand disability, and he
denied receiving any treatment since 1996. There is no
evidence in the claims file to suggest that marked
interference with employment is the result of the condition.
He was employed doing maintenance in a warehouse at the time
of examination by Dr. Cohen in December 1999 and in the
supply department at a food warehouse on VA examination in
December 2000. Thus, the Board finds that disability is
appropriately rated under the schedular criteria, and that
referral for extraschedular consideration is not warranted.
ORDER
A rating in excess of 20 percent for residuals of a left hand
gunshot wound with ring finger shortening is denied.
GEORGE R. SENYK
Member, Board of Veterans' Appeals